The judgment of the Circuit Court of Appeals is vacated and the cause is remanded to the District Court with directions to allow petitioner's claim in accordance with the statutory provision.

Judgment vacated.

BELL TELEPHONE COMPANY OF PENNSYLVANIA v. PENNSYLVANIA PUBLIC UTILITY COMMISSION.

APPEAL FROM THE SUPERIOR COURT OF PENNSYLVANIA.

No. 252. Argued January 10, 1940.-Decided January 29, 1940.

1. When the Supreme Court of Pennsylvania has refused appeal from an order of the Superior Court affirming a rate order of the Pennsylvania Public Utility Commission, an appeal to this Court is from the judgment of the Superior Court. P. 31.

2. In the absence of other constitutional objections, it can not be said that a state court denies due process when on appropriate hearing it determines that there is evidence to sustain a finding of the violation of state law with respect to the conduct of local affairs. P. 32.

3. Where there is no claim of confiscation, the state authority is competent to establish intrastate telephone rates and in so doing to decide what constitutes an unreasonable discrimination with respect to intrastate traffic. P. 32.

APPEAL from 135 Pa. Super. Ct. 218; 5 A. 2d 410, dismissed for want of a substantial federal question.

Mr. Benjamin O. Frick, with whom Messrs. William H. Lamb and E. Everett Mather, Jr. were on the brief, for appellant.

Messrs. Claude T. Reno, Attorney General of Pennsylvania, A. Jere Creskoff, and Harry M. Schowalter were on a brief for appellee.

330

Opinion of the Court.

By leave of Court, Messrs. John E. Benton and Clyde S. Bailey filed a brief on behalf of the National Association of Railroad & Utilities Commissioners, as amicus curiae, urging affirmance.

PER CURIAM.

The Pennsylvania Public Utility Commission, by order of March 15, 1938, required appellant, The Bell Telephone Company of Pennsylvania, to revise its intrastate toll rates for distances exceeding 36 miles so as to conform to rates charged by the American Telephone & Telegraph Company for comparable distances for interstate services. The Commission found, after full hearing, that the rates charged for long distance service in Pennsylvania were higher than the interstate rates for the same facilities for a like or greater distance, and constituted an unreasonable discrimination against intrastate patrons in violation of § 304 of the Public Utility Law of Pennsylvania of May 28, 1937, P. L. 1053. On appeal, the Superior Court of Pennsylvania affirmed the order. 135 Pa. Super. Ct. 218; 5 A. 2d 410. The Supreme Court of Pennsylvania refused appeal. The case comes here on appeal from the judgment of the Superior Court. See Pennsylvania Railroad Co. v. Public Service Commission, 250 U. S. 566.

Appellant expressly disclaimed below, and also here, raising the question of confiscation. Its contentions are (1) that the Commission's order is wholly without support in the evidence and thus constitutes a denial of due process contrary to the Fourteenth Amendment; (2) that the order based on discrimination only, and prescribing rates not found to be reasonable and depriving appellant of considerable revenue, is arbitrary and hence a denial of due process; and (3) that the order is a regulation of

interstate rates and imposes a direct burden upon interstate commerce.

As to the first contention, it appears that the state court heard the appeal judicially and decided that there was evidence justifying the finding of the Commission of unreasonable discrimination in the transaction of its intrastate business. In the absence of other constitutional objections, it cannot be said that a state court denies due process when on appropriate hearing it determines that there is evidence to sustain a finding of the violation of state law with respect to the conduct of local affairs. The contention that such a decision is erroneous does not present a federal question. Arrowsmith v. Harmoning, 118 U. S. 194, 196; Bonner v. Gorman, 213 U. S. 86, 91; American Railway Express Co. v. Kentucky, 273 U. S. 260, 273.

As to the second contention, where there is no claim of confiscation, the state authority is competent to establish intrastate rates and in so doing to decide what constitutes an unreasonable discrimination with respect to intrastate traffic. See Stone v. Farmers' Loan & Trust Co., 116 U. S. 307, 325; Portland Railway, L. & P. Co. v. Railroad Commission, 229 U. S. 397, 410; Los Angeles Gas Co. v. Railroad Commission, 289 U. S. 287, 304, 305; West Ohio Gas Co. v. Public Utilities Commission, 294 U. S. 63, 70.

Finally, it appears that the Commission's order related exclusively to intrastate traffic and that there was no attempt to regulate interstate rates.

The appeal is dismissed for want of a substantial federal question.

Dismissed.

Syllabus.

MCGOLDRICK, COMPTROLLER OF THE CITY OF NEW YORK, v. BERWIND-WHITE COAL MINING CO.

CERTIORARI TO THE SUPREME COURT OF NEW YORK.

No. 475. Argued January 2, 1940.-Decided January 29, 1940. 1. By contracts of sale made, through a sales office in the City of New York, with public utility and steamship companies in that city, a Pennsylvania corporation agreed to sell and deliver to them large quantities of coal of specified grades (said to possess unique qualities) produced at its Pennsylvania mines. The coal moved by rail to Jersey City and thence by barge to the City of New York and was there delivered to the purchasers' plants or steamships. Held, that the imposition of a tax by New York City on the purchasers of the coal, measured by the sales price, and the requirement that the tax be collected by the seller, do not infringe the commerce clause of the Federal Constitution. Pp. 42 et seq.

The tax is 2% of the receipts upon every sale, for consumption, of tangible personal property in the city, "sale" being defined as "any transfer of title or possession or both . . . in any manner or by any means whatsoever for a consideration or any agreement therefor." The tax is upon the buyer, the seller being liable only if he fails to collect and pay over. It is conditioned upon transfer of title or possession or an agreement therefor, consummated in the State.

2. Considering the necessity of reconciling the competing constitutional demands, that commerce between the States shall not be unduly impeded by state action, and that the power to lay taxes for the support of state government shall not be unduly curtailed, the Court finds no adequate ground for saying that this tax is a regulation which, in the absence of Congressional action, the commerce clause forbids. P. 49.

3. The tax as here applied is not open to the objections that it is aimed at or discriminates against interstate commerce, or that it is laid upon the privilege of interstate commerce, or that it is a tax upon interstate transportation or its gross earnings, or upon merchandise in the course of an interstate journey. P. 48.

The only relation of the tax to interstate commerce arises from the fact that, immediately preceding transfer of possession to the purchaser within the State, the merchandise has been transported

215234°-40- -3

Argument for Petitioner.

309 U.S.

in interstate commerce. In its effect upon interstate commerce it does not differ from taxes on the "use" of property which has just been moved in interstate commerce, or on storage or withdrawal for use, or a property tax on goods after arrival.

4. There is no valid distinction in this relationship between a tax on property-the sum of all the rights and powers incident to ownership-and a tax on the exercise of some of its constituent elements. P. 52.

5. The burden and effect of the tax are no greater when the purchase order or contract precedes than when it follows the interstate shipment. P. 54.

6. Robbins v. Shelby County Taxing District, 120 U. S. 489, has been narrowly limited to fixed-sum license taxes imposed only on the business of soliciting orders for the purchase of goods to be shipped interstate. P. 57.

7. The tax being conditioned upon a local activity-delivery of goods within the State upon their purchase for consumption-is not subject to the objection applicable to a tax on gross receipts from interstate commerce, which exacts tribute for the commerce carried on both within and without the State. Adams Manufacturing Co. v. Storen, 304 U. S. 307, distinguished. P. 57.

8. The question whether the taxing statute is intended to apply where contracts for purchase made in New York City call for delivery outside of the State is a question for the state court. P. 58. 281 N. Y. 610, 670; 22 N. E. 2d 173, 764, reversed.

CERTIORARI, 308 U. S. 546, to review the affirmance of a judgment sustaining a sales tax assessed by the Comptroller of the City of New York.

Mr. William C. Chanler, with whom Messrs. Sol Charles Levine, Edmund B. Hennefeld, and Jerome R. Hellerstein were on the brief, for petitioner.

From whatever angle the problem is approached, the burden and effect of the tax are the same, whether imposed upon a sale of goods produced or stored within or without the State.

If we are correct in that analysis, the tax must be sustained, for if its effect on interstate commerce is identical with its effect upon local commerce, it can not violate the commerce clause.